*

Honorable Maurice B. Cohill, Senior U.S. District Judge for

the Western District of Pennsylvania, sitting by designation.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 97-8170 _______________ D. C. Docket No. 1:96-CV-0317-MHS

SANDRA L. PLEMING,

Plaintiff-Appellant,

versus

UNIVERSAL-RUNDLE CORPORATION,

Defendant-Appellee.

______________________________

Appeal from the United States District Court

for the Northern District of Georgia

______________________________

(June 8, 1998)

Before BIRCH, Circuit Judge, FAY, Senior Circuit Judge, and

COHILL*

, Senior District Judge.
2

BIRCH, Circuit Judge:

This appeal requires us to address whether the doctrines of res

judicata or collateral estoppel bar a cause of action for employment

discrimination and retaliation. In the course of prior litigation, the

parties briefed and discussed the incidents giving rise to the

complaint in the present case but never amended the pleadings in

the first litigation to include a claim based on the incidents. The

plaintiff-appellant maintains that, because our precedents did not

require her to amend her complaint to include claims based on

incidents of alleged discrimination discovered after she filed her first

lawsuit, res judicata and collateral estoppel cannot now prevent her

from bringing the discovered claims in a second lawsuit. The district

court found that the plaintiff-appellant had asserted the subsequent

incidents before the first court and, therefore, held that res judicata

or, alternatively, collateral estoppel barred the suit. We disagree

and REVERSE.
3

BACKGROUND

In the summer of 1992, plaintiff-appellant, Sandra L. Pleming,

suffered a back injury while she worked as a laborer for defendantappellee, Universal-Rundle Corporation (“Universal-Rundle”). In

July 1993, she applied for a clerical position that would have been

less physically demanding but would have paid her less than what

she earned as a laborer. Although apparently qualified for the

position, Pleming did not receive the job. In August 1994, Pleming

filed an employment discrimination lawsuit in federal district court

alleging that Universal-Rundle had discriminated against her based

on her race and disability. Pleming's complaint relied on Title VII,

42 U.S.C. § 2000e, et. seq., and 42 U.S.C. § 1981. Although

Pleming stated a prima facie case of discrimination, UniversalRundle explained that it had not hired Pleming for the clerical

position because the company had a policy against allowing

employees to transfer to lower paying jobs. 
4

In October 1994, during the course of the litigation, two

additional clerical positions of the type Pleming sought opened at

Universal-Rundle. Pleming did not apply for either of these positions

and the company filled them with other applicants. In fact, Pleming

did not learn about these additional positions at Universal-Rundle

until May 1995, during the course of discovery. Although Pleming

never amended her complaint to include allegations of discrimination

arising out of these incidents, she described the incidents in her

briefs before the magistrate judge and the district court. Pleming

sought to use these incidents to prove that Universal-Rundle's policy

was a pretext for discrimination and thus avoid summary judgment

on her claims arising out of the July 1993 hiring decision. A

magistrate judge found that Pleming's claims of racial discrimination

were sufficient to withstand Universal-Rundle's motion for summary

judgment. The magistrate judge's report and recommendation (the

“report”) included a reference to the two clerical positions that

Universal-Rundle had filled after Pleming filed her complaint. The
5

district court, however, granted summary judgment in favor of

Universal-Rundle, finding that Pleming had failed to prove that the

company's non-discriminatory explanation was pretext, and a panel

of this court affirmed without opinion. See Pleming v. UniversalRundle Corp., No. 1:94-cv-2004-RLV, slip. op. (N.D. Ga. Nov. 22,

1995), aff'd, 100 F.3d 971 (11th Cir. 1996) (“Pleming I”). 

On January 30, 1996, after the district court entered summary

judgment in favor of Universal-Rundle in Pleming I, Pleming filed

another complaint in federal district court alleging discrimination and

retaliation against her in the company's decision to hire other

applicants for the October 1994 clerical openings. Pleming based

her claims in this second lawsuit on 42 U.S.C. § 1981. UniversalRundle moved to dismiss the complaint on the ground that either res

judicata or collateral estoppel barred the suit because Pleming had

already litigated and lost on her claims arising out of the October

1994 hiring decisions. The district court agreed and dismissed

Pleming's complaint.
6

DISCUSSION

We subject the district court's decision to dismiss a complaint

pursuant to Federal Rule of Civil Procedure 12(b) to de novo review.

See In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996). Although

the parties are in essential agreement about the material facts of the

case, we assume the allegations of the plaintiff's complaint to be true

and construe the facts in the light most favorable to the plaintiff. Id.

at 350.

I. Res Judicata

First, we address the district court's holding that the principles

of res judicata barred Pleming's second lawsuit. As the district court

correctly observed, the doctrine of res judicata provides repose by

preventing the relitigation of claims that have already been fully

litigated and decided. Res judicata, or claim preclusion, bars a

subsequent claim when a court of competent jurisdiction entered a

final judgment on the merits of the same cause of action in a prior
1

 Neither the parties nor the district court address whether

state or federal principles of res judicata apply to the case at

bar. Our precedents on this question appear to lead in two

different directions. Compare Precision Air Parts, Inc. v. Avco

Corp., 736 F.2d 1499, 1503 (11th Cir. 1984) (a federal court

reviewing the preclusive effect of a prior federal judgment applies

federal common law) with NAACP v. Hunt, 891 F.2d 1555, 1560 (11th

Cir. 1990) (“Federal courts apply the law of the state in which

they sit with respect to the doctrine of res judicata.”). As a

result, the district courts have found themselves in some

confusion. See e.g., Jones v. New England Life Ins. Co., 974 F.

Supp. 1476, 1479-81 (M.D. Ga. 1996) (describing these precedents).

Since both federal and Georgia principles of res judicata require

the cause of action in the first and second lawsuit to be the same,

compare Durbin, 793 F.2d at 1549, with Waldroup v. Greene County

Hosp. Auth., 265 Ga. 864, 866, 463 S.E.2d 5, 7 (1995), we need not

resolve the conflict to decide this appeal. We note the problem,

however, in the hope that future litigants will consider and brief

the issue. 

7

lawsuit between the same parties. See I.A. Durbin, Inc. v. Jefferson

Nat'l Bank, 793 F.2d 1541, 1549 (11th Cir. 1986).1 Pleming

concedes that, if her second suit involves the same cause of action

decided in Pleming I, res judicata bars this litigation because her

case satisfies all the other elements of the doctrine.

The determination of whether a litigant has asserted the same

cause of action in two proceedings depends upon whether the

primary right and duty are the same in both cases. See Manning v.

City of Auburn, 953 F.2d 1355, 1358 (11th Cir. 1992). Res judicata

acts as a bar “not only to the precise legal theory presented in the
8

previous litigation, but to all legal theories and claims arising out of

the same operative nucleus of fact.” Id. at 1358-59 (quoting NAACP

v. Hunt, 891 F.2d 1555, 1561 (11th Cir. 1990) (internal quotation

omitted)). A court, therefore, must examine the factual issues that

must be resolved in the second suit and compare them with the

issues explored in the first case. Id. at 1359.

Pleming's first lawsuit claimed that Universal-Rundle

discriminated against her when the company hired a less qualified

white employee for a specific clerical position in July 1993. Pleming

did not learn that the company had engaged in alleged further

discrimination against her by filling two subsequent administrative

openings in October 1994 without considering her, until May 1995,

during the conduct of discovery in the first lawsuit. Pleming's first

complaint, therefore, contained no mention of these subsequent

hiring decisions and Pleming did not amend her complaint to include

them.
9

In Manning, we considered a situation in which a plaintiff

elected not to participate in an employment discrimination classaction but brought a second suit alleging employment discrimination

against the same defendant. The operative facts that gave rise to

the plaintiff's claims for discrimination had not occurred when the

class filed its claim but some of those facts occurred before the

district court dismissed the plaintiff from the class action. The

Manning plaintiff, therefore, had an opportunity to preserve her

claims in the class action by filing a supplemental pleading or by

participating in discovery in that case. See id. at 1359. We,

however, observed that Federal Rule of Civil Procedure 15(d), which

governs supplemental pleadings, makes such a pleading optional

and held that the doctrine of res judicata does not punish a plaintiff

for exercising the option not to supplement the pleadings with an

after-acquired claim. Id. at 1360. We explained that the parties

frame the scope of litigation at the time the complaint is filed and that

a judgment is only conclusive regarding the matters that the parties
2

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir. 1981) (en banc), this court adopted as binding precedent all

decisions of the former Fifth Circuit handed down prior to October

1, 1981.

10

might have litigated at that time but not regarding “new rights

acquired, pending the action which might have been, but which were

not required to be litigated.” Id. (quoting Los Angeles Branch

NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 739 (9th

Cir. 1984)) (internal quotations omitted). We then explained that:

[W]e do not believe that the res judicata

preclusion of claims that “could have been

brought” in earlier litigation includes claims

which arise after the original pleading is filed in

the earlier litigation. Instead, we believe that,

for res judicata purposes, claims that “could

have been brought” are claims in existence at

the time the original complaint is filed or claims

actually asserted by supplemental pleadings or

otherwise in the earlier action.

Id. (second emphasis added) (footnote omitted); see also

Commercial Box & Lumber Co. v. Uniroyal, Inc., 623 F.2d 371, 374

n.2 (5th Cir. 1980) (arriving at a similar conclusion).2

The parties in this case agree that the events giving rise to

Pleming II arose well after Pleming filed and amended her complaint
3

 Universal-Rundle also contends that the July 1993 and

October 1994 incidents do not present factually distinct causes of

action, but rather the same claim litigated on a different legal

theory. Universal-Rundle's argument that both incidents concern

the company's duty to hire Pleming in a clerical capacity is

overbroad and unpersuasive. Pleming has not attempted to

relitigate the circumstances of the July 1993 hiring decision under

a different legal theory. Instead, Pleming alleges that the

11

in the first lawsuit. The parties also agree that, given our holding in

Manning, Pleming was under no obligation to amend or supplement

her complaint and that she did not do so. Universal-Rundle,

however, points out that the Manning opinion left open the possibility

that a litigant could assert a claim by other means and contends that

Pleming actually asserted her claims arising out of the October 1994

hiring decisions in the Pleming I proceedings by including those

incidents in her briefs. Pleming admits that her briefs did refer to

these incidents to provide evidence that Universal-Rundle's

explanation for hiring someone else in July 1993 was pretextual.

The question of whether res judicata bars Pleming's claims,

therefore, turns on whether the discussion of a related but distinct

cause of action in briefs amounts to the actual assertion of that claim

in the first proceeding.3
October 1994 incidents, which took place over a year later,

constitute independent acts of discrimination. See e.g., Mahroom

v. Hook, 563 F.2d 1369, 1377 (9th Cir. 1977) (holding that

identical allegations of discrimination in connection with a hiring

decision two years after the subject of an earlier proceeding

constituted a separate cause of action). Universal-Rundle's

reliance on ambiguous language in our predecessor court's opinions

to support the proposition that res judicata bars litigation

regarding subsequent acts that arise after the plaintiff files a

complaint in the first action but before the court enters judgment

is unpersuasive in light of our opinion in Manning.

12

We addressed a similar question in Coon v. Georgia Pacific

Corp., 829 F.2d 1563 (11th Cir. 1987), and held that a district court

had not abused its discretion by refusing to consider a plaintiff's

unpled claims even though the plaintiff had included the claims in

her briefs and discovery requests. Id. at 1568-71. In Georgia

Pacific, the district court held that the plaintiff's references to unpled

incidents of alleged discrimination in her pretrial stipulation, in her

motions before the court, and throughout the conduct of discovery

were no substitute for the factual allegations of a complaint required

by Federal Rule of Civil Procedure 8. We affirmed the district court,

noting that although the plaintiff was free to plead her additional

claims in the litigation, she had not done so: “These claims were not

somehow 'present' within her complaint, despite her failure to allege
13

them.” Id. at 1570. Of particular relevance to the case before us, the

Georgia Pacific court rejected the plaintiff's argument that the claims

were properly before the district court because she alleged they

were part of a “continuing violation.” Id. (citing cases that require a

plaintiff to plead instances of continuing violations that occur after

the initiation of an EEOC charge or similar litigation before they are

properly before the court); Jones v. Florida Power Corp., 825 F.2d

1488, 1492-93 (11th Cir. 1987) (upholding a district court's refusal

to hear evidence on incidents of discrimination that tended to

establish a pattern of racial discrimination because the plaintiff's

complaint contained no allegations regarding either the incidents or

the pattern of discrimination); see also Wu v. Thomas, 863 F.2d

1543, 1548-49 (11th Cir. 1989) (inclusion of testimony in a prior

action that touched on the substance of second cause of action for

retaliation could not implicitly amend the complaint in the prior

action).
4

 We note, however, that there is precedent in this circuit,

preceding our opinion in Manning, that holds that a plaintiff's

interjection of unpled matters into a supplementary pretrial

statement and introduction of evidence on those matters as

“background material” to distinct legal claims does not bar the

subsequent litigation of the plaintiff's independent claims arising

out of those matters. See Stevenson v. International Paper Co.,

516 F.2d 103, 111 (5th Cir. 1975). We express no opinion on

whether the result in Stevenson properly might be limited to its

facts. 

14

Although Manning intimated that a litigant may “otherwise”

assert a claim, without filing a supplemental pleading, the court did

not purport to suspend the Federal Rules of Civil Procedure. We

believe that these other means must conform with the rules of

procedure and would, for example, include an amendment pursuant

to Rule 15(b) or the assertion of a claim through a pretrial order

pursuant to Rule 16(e).4

 Neither of these options apply to this case.

Since Universal-Rundle objected to Pleming's statements about the

October 1994 incidents in her briefs, it is clear that the parties could

not have tried the issue “by express or implied consent.” See Fed.

R. Civ. P. 15(b) (which permits a court to treat such issues as if they

had been pled in the complaint). Moreover, neither the magistrate

judge nor the district court entered a pretrial order in this case.
15

Pleming's references to the October 1994 incidents of alleged

discrimination during the first lawsuit are similar to the references

that we have held insufficient to assert a claim before a district court.

In her response to Universal-Rundle's motion for summary

judgment, Pleming argued that the October 1994 incidents

demonstrated pretext in connection with the July 1993 hiring

decision and asserted that the incidents constituted evidence of a

“continuing violation.” Pleming also used the October 1994 incidents

in her objections to the magistrate judge's report to provide evidence

of discriminatory intent. As the cases discussed above reveal,

however, Pleming's references to the incidents in her briefs were

insufficient to put her claims of discrimination and retaliation arising

out of the October 1994 incidents before the district court pursuant

to the Federal Rules of Civil Procedure. Accordingly, these

references were insufficient to actually assert these claims in the

prior litigation as contemplated in Manning. 
5

 The report states in pertinent part: “Other clerical

positions became available after July 1993. Plaintiff did not

apply for any of these positions.” R1-4, Exh.1 at 6 (citations

omitted). 

16

Universal-Rundle pushed for exactly this conclusion before the

magistrate judge and the district court in Pleming I when it argued

that the October 1994 incidents were beyond the scope of Pleming's

complaint and therefore not properly before the court. The company

now contends that the magistrate judge implicitly rejected its position

by including Pleming's contentions in his report. The “Background

Facts” portion of the report includes two sentences regarding the

October 1994 vacancies, but the report limits its analysis to

Pleming's claim of discrimination arising out of the company's July

1993 decision to award the clerical position to a white employee.5

Similarly, the district court's opinion, which rejected the magistrate

judge's conclusions on the employment discrimination claims and

granted Universal-Rundle's motion for summary judgment, made no

mention of the October 1994 incidents. The isolated reference in the

magistrate judge's report does not support the defendant's
17

contention that the magistrate judge and the district court actually

adjudicated an unpled and unasserted claim. At best, the report's

reference to the post-1993 openings indicates that the magistrate

judge may have considered the events as evidence of pretext but

does nothing to suggest that the magistrate judge actually rendered

a decision about whether those events constituted independent or

even continuing acts of employment discrimination. As a result, we

find that the district court erred when it decided that res judicata

barred Pleming's claims of discrimination arising out of the October

1994 incidents.

II. Collateral Estoppel

We must also address the district court's alternative holding

that collateral estoppel bars Pleming's second lawsuit. While res

judicata bars the relitigation of claims, collateral estoppel precludes

the relitigation of an issue that has already been litigated and

resolved in a prior proceeding. See Durbin, 793 F.2d at 1549. To
18

claim the benefit of collateral estoppel the party relying on the

doctrine must show that: (1) the issue at stake is identical to the one

involved in the prior proceeding; (2) the issue was actually litigated

in the prior proceeding; (3) the determination of the issue in the prior

litigation must have been “a critical and necessary part” of the

judgment in the first action; and (4) the party against whom collateral

estoppel is asserted must have had a full and fair opportunity to

litigate the issue in the prior proceeding. Id. The district court found

that the Pleming I court, before it could have granted summary

judgment in Universal-Rundle's favor, necessarily evaluated

Pleming's claims regarding the October 1994 incidents and found no

evidence of discrimination. 

Our conclusion that Pleming did not actually assert a claim for

employment discrimination arising out of the October 1994 incidents

in the first lawsuit leads us to question whether the parties actually

litigated those issues. The United States Court of Appeals for the

Seventh Circuit has explained that the actual litigation requirement
6

 Once again, we note that the parties and the district court

have failed to address whether federal or state principles of

collateral estoppel apply to this question. As we observed above,

however, both Georgia and federal law require the actual litigation

of the issue in question in the prior proceeding. Compare Durbin,

793 F.2d at 1549, with Waldroup, 265 Ga. at 867, 463 S.E.2d at 7.

19

for the application of collateral estoppel “will usually be satisfied

merely by the designation of the question as one for trial (for

example by its being listed on the pretrial order as an issue that is to

be tried . . .), even if no evidence is introduced . . . .” Truck Ins.

Exch. v. Ashland Oil, Inc., 951 F.2d 787, 792 (7th Cir. 1992); see

also Restatement (Second) of Judgments § 27 cmt. d (1982) (“When

an issue is properly raised, by the pleadings or otherwise, and is

submitted for determination, and is determined, the issue is actually

litigated . . . .”).6

 Although it is clear that Pleming made no such

formal declaration of her intent to litigate the October 1994 incidents

during Pleming I, Universal-Rundle argues that because Pleming

offered the incidents as evidence of discriminatory intent and

pretext, Pleming actually litigated her claims for employment

discrimination arising out of those incidents. 
20

We rejected a similar argument, however, as “completely

devoid of merit” in Wu, 863 F.2d at 1548-49. In that case, we found

that a judgment against the plaintiff on prior claims of gender

discrimination did not collaterally estop a subsequent claim for

retaliation, even though the testimony offered in the first trial

“touched on” the defendant's retaliatory actions. Id. Similarly, we

cannot accept Universal-Rundle's contention that Pleming litigated

her claims arising out of the October 1994 incidents, including her

claims of retaliation for filing Pleming I, simply by offering the

incidents as evidence of pretext in a distinct employment decision.

This is not a case in which the plaintiff squarely presented an issue

for decision in the first litigation and failed to carry the burden of

proof; rather, “[i]t was neither framed by the pleadings as an issue

nor decided by the district judge.” Ashland Oil, 951 F.2d at 793. 

We note that Pleming's present complaint alleges that

Universal-Rundle did not hire her for a clerical position in October

1994 at least in part to retaliate against her for filing the Pleming I
7

 Throughout its brief Universal-Rundle cites to a number of

cases that make the point that failure to make all the arguments

21

litigation. Regardless of what else Pleming may have argued in the

first lawsuit, it is clear that the subject of retaliation did not arise, and

Universal-Rundle does not contend otherwise. Moreover, to the

extent Pleming did raise the October 1994 incidents in the first

litigation, she did not “actually litigate” the question of whether those

incidents would themselves constitute employment discrimination.

Pleming sought to introduce these incidents to show that UniversalRundle's citation to a policy against transferring employees to lower

paying jobs was pretextual. Pleming attempted to show pretext by

proving that although Universal-Rundle knew by October 1994 that

she could not handle the physical demands of her higher paying

position and, therefore, could not demand that the company return

her to that job, the company still refused to hire her in a clerical

position. Much like we held in Wu, this tangential reference to the

events of October 1994 was an insufficient basis for district court's

conclusion that the parties had actually litigated the issue.7

 Cf. Rath
possible in support of a position in the first litigation does not

preclude the application of collateral estoppel. See Zip Dee, Inc.

v. Dometic Corp., 905 F. Supp. 535 (N.D. Ill. 1995). We find no

fault with those cases but find that they offer little assistance

in our analysis of this case. Pleming did not attempt to litigate

her independent claims of employment discrimination and retaliation

on a different legal theory in Pleming I; she simply sought to use

them as evidence to contradict Universal-Rundle's explanations

regarding the July 1993 decision. 

22

v. Gallup, Inc., 51 F.3d 791, 793 (8th Cir. 1995) (a plaintiff's failure

to establish pretext in a prior litigation establishes only that the

employment decision in question was not improperly motivated and

that was the only issue that was “'actually litigated' for collateral

estoppel purposes”); United States v. Woods, 484 F.2d 127, 138

(4th Cir. 1973) (finding that a grant of acquittal on one count of a

criminal prosecution did not collaterally estop the prosecution from

offering evidence on that count to prove absence of accident on

other counts). Accordingly, we reverse the district court's alternative

holding that collateral estoppel barred Pleming's suit in this case.

CONCLUSION
23

Pleming asks us to reverse the district court's decision to

dismiss her complaint as barred by the doctrines of res judicata and

collateral estoppel. We conclude that the district court erred when

it found that Pleming actually asserted claims for employment

discrimination and retaliation arising out of incidents that occurred

after she filed her complaint in Pleming I. We also find that the

district court erred in its alternative holding that Pleming's references

to these incidents in her briefs in Pleming I constituted actual

litigation of those claims. Accordingly, we hold that res judicata and

collateral estoppel do not bar Pleming's complaint in this subsequent

lawsuit. We REVERSE and REMAND this case to the district court

for further proceedings consistent with this opinion.